Citation Nr: 0118908
Decision Date: 07/19/01 Archive Date: 07/24/01
DOCKET NO. 01-04 587 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Manila, the
Republic of the Philippines
THE ISSUE
Entitlement to service connection for ischemic heart disease.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
C. Kedem, Associate Counsel
INTRODUCTION
The veteran had active service with the Philippine
Commonwealth Army from December 8, 1941 to September 24, 1942
and Regular Philippine Army service from August 14, 1945 to
February 20, 1946. He was a prisoner of war (POW) from April
to September 1942.
This matter comes to the Board of Veterans' Appeals (Board)
from an August 2000 rating decision of the Department of
Veterans Affairs (VA) Manila Regional Office (RO) which
denied service connection for ischemic heart disease.
The RO previously denied service connection for ischemic
heart disease in an August 1997 rating decision which became
final. See 38 C.F.R. § 20.1103 (2000). A previously decided
claim may not be reopened in the absence of new and material
evidence. Barnett v. Brown, 8 Vet. App. 1, 4 (1995) (citing
38 U.S.C. §§ 5108, 7104(b)). Further, regardless of RO
action, the Board is legally bound to decide the threshold
issue of whether the evidence is new and material before
addressing the merits of the claim. Id.
FINDINGS OF FACT
1. Service connection for ischemic heart disease was denied
by August 1997 rating decision; the veteran was notified
thereof by letter in October 1997.
2. The veteran did not initiate a timely appeal.
3. Evidence brought to VA's attention since the August 1997
denial of service connection for ischemic heart disease is
potentially probative of the issue at hand and so significant
that it must be considered to decide fairly the merits of the
claim.
4. The veteran's ischemic heart disease is not shown to have
had its onset during his active service.
CONCLUSIONS OF LAW
1. The August 1997 rating decision is final. 38 U.S.C.A.
§ 7105(c) (West 1991); 38 C.F.R. § 20.1103 (2000).
2. New and material evidence to reopen the claim of service
connection for ischemic heart disease has been received. 38
U.S.C.A. § 5108 (West 1991), 38 C.F.R. § 3.156(a) (2000).
3. The veteran's ischemic heart disease was not incurred in
active service. 38 U.S.C.A. §§ 1110, 1131 (West 1991);
38 U.S.C. § 5107(b) (as amended by the Veterans Claims
Assistance Act of 2000, Pub. L. No. 106-475, § 4, 114 Stat.
2096, 2098-99 (2000)); 38 C.F.R. §§ 3.102, 3.303 (2000).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The veteran was a POW during World War II. According to
service medical records, he suffered from malaria and amebic
dysentery during service, but service medical records do not
mention ischemic heart disease, beriberi heart disease, or
swelling of the legs and feet.
In February 1997, he filed a claim of service connection for
approximately 30 disabilities stemming from his prisoner of
war experience to include ischemic heart disease.
In May 1997, he completed Former POW Medical History form.
He specifically indicated that he did not suffer from
beriberi during captivity. He also indicated that he did not
suffer from swelling of the legs and feet or swelling in the
joints.
In June 1997, he underwent a VA medical examination. Lateral
wall ischemia was diagnosed. The examination report did not
indicate that the veteran reported the presence of localized
edema during his captivity.
By August 1997 rating decision, the RO denied service
connection for ischemic heart disease. He was given notice
of the RO denial by letter in October 1997. As the veteran
did not initiate or perfect an appeal within one year of
notification, the August 1997 decision is final. 38 C.F.R.
§ 20.1103.
In June 2000, the veteran submitted a letter from W.B.
Samonte, M.D., listing his hospitalizations since 1986.
According to the letter, he was treated for ischemic heart
disease in May 1989. That month, he sought to reopen his
claim of service connection ischemic heart disease. It was
indicated that he suffered from numerous disabling diseases
during captivity and had "lots of localized edema."
Law and Regulations
As noted above, the veteran's claim of service connection for
ischemic heart disease was previously denied in an August
1997 rating decision that became final. 38 U.S.C.A.
§ 7105(c); 38 C.F.R. § 20.1103. Despite the finality of a
prior adverse decision, a claim will be reopened and the
former disposition reviewed if new and material evidence is
presented or secured with respect to a claim that has been
disallowed. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156.
Under applicable regulation, "new and material evidence" is
defined as evidence not previously submitted to agency
decision makers which bears directly and substantially upon
the specific matter under consideration, which is neither
cumulative or redundant, and which by itself or in
conjunction with evidence previously assembled is so
significant that must be considered in order to fairly decide
the merits of the claim. 38 C.F.R. § 3.156; see also Hodge
v. West, 155 F.3d 1356 (Fed. Cir. 1998).
The Federal Circuit has noted that not every piece of new
evidence is "material," but that some new evidence may well
contribute to a more complete picture of the circumstances
surrounding the origin of a veteran's injury or disability,
even where it will not eventually alter a rating decision.
Hodge, 155 F.3d at 1363.
In determining whether evidence is new and material, the
credibility of the evidence is generally presumed. Justus v.
Principi, 3 Vet. App. 510, 512-513 (1992). In Kutscherousky
v. West, 12 Vet. App. 369 (1999), the Court held that the
holding in Justus was not altered by the Federal Circuit
decision in Hodge.
With these considerations, the Board must review all of the
evidence that has been submitted by the veteran or otherwise
associated with the claims file since the RO's final decision
in August 1997.
In this case, the additional evidence submitted after the
initial rating decision consists of a confirmation of
treatment for ischemic heart disease and a contention that he
suffered "lots of localized edema" during confinement as a
prisoner of war. The new evidence establishes a diagnosis of
ischemic heart disease for the first time and a statement
confirming relevant symptomatology during captivity.
After careful consideration of this evidence, the Board finds
that it is new and material sufficient to reopen the claim
for service connection for ischemic heart disease in that it
provides a current diagnosis and contributes to a more
complete picture of the origin of the veteran's claimed
disability. See 38 C.F.R. § 3.156(a); Hodge, 155 F.3d at
1363.
Service connection may be granted for disability resulting
from personal injury suffered or disease contracted in the
line of duty or for aggravation of a pre-existing injury or
disease in the line of duty. 38 U.S.C.A. §§ 1110, 1131 (West
1991); 38 C.F.R. §§ 3.303, 3.306 (2000).
Service connection may also be granted for any disease
diagnosed after discharge, when all the evidence, including
that pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d). In addition,
service connection may be granted for disability which is
proximately due to or the result of a service-connected
disease or injury. 38 C.F.R. § 3.310(a) (2000).
A claim of service connection for a disability must be
accompanied by medical evidence which establishes that the
claimant currently has the claimed disability. Absent proof
of a present disability there can be no valid claim. See,
e.g., Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998)
(38 U.S.C.A. § 1110 requires "current symptomatology" at the
time the claim is filed in order for a veteran to be entitled
to compensation); Degmetich v. Brown, 104 F.3d 1328
(Fed. Cir. 1997) (38 U.S.C. § 1131 as requiring the existence
of a present disability for VA compensation purposes). See
also Sanchez-Benitez v. West, 13 Vet. App. 282 (1999) (there
is no basis for the granting of service connection for a neck
disability absent medical evidence that the veteran presently
has a chronic neck disability which had its onset or is
otherwise related to service); Wamhoff v. Brown,
8 Vet. App. 517 (1996) (it is well settled that there must be
evidence of present disability for service connection to be
awarded); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992)
(Congress specifically limits entitlement for service-
connected disease or injury to cases where such incidents
have resulted in a disability. Absent proof of present
disability there can be no valid claim); Rabideau v.
Derwinski, 2 Vet. App. 141 (1992).
The standard of proof to be applied in decisions on claims
for veterans' benefits is set forth in the Veterans Claims
Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, § 4, 114
Stat. 2096, 2098-99 (2000) (to be codified as amended at
38 U.S.C. § 5107). Under that provision, a veteran is
entitled to the "benefit of doubt" when there is an
approximate balance of positive and negative evidence. See
also 38 C.F.R. § 3.102. When a veteran seeks benefits and
the evidence is in relative equipoise, the veteran prevails.
See Gilbert v. Derwinski, 1 Vet. App.49 (1990). The
preponderance of the evidence must be against the claim for
benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518
(1996)
VCAA § 3(a), mandates that the Secretary has a duty provide
notice to the claimant as to the information and evidence
necessary to substantiate the claim. Further, under VCAA,
the Secretary has a duty to assist the claimant in obtaining
evidence necessary to substantiate the claim. Id. (to be
codified as amended at 38 U.S.C. § 5103A). However, under
the revised § 5103A(a)(2), the Secretary is not required to
provide assistance to the claimant if no reasonable
possibility exists that such assistance would aid in
substantiating the claim.
Finally, under the newly-enacted 38 U.S.C. § 5103A(d), the
Secretary is required to provide a medical examination or
obtain a medical opinion if (1) there is competent evidence
of a current disability, and (2) evidence that the disability
or symptoms may be associated with service, but (3) the case
does not contain sufficient medical evidence for the
Secretary to make a decision on the claim.
Certain enumerated diseases may be service connected if
manifested by a former POW who was interned or detained for
not less than 30 days, if such diseases were manifested to a
degree of 10 percent or more at any time after discharge even
though there is no record of such disease during service.
Such enumerated POW presumptive diseases do not include
cardiovascular disease, except for beriberi heart disease,
which covers ischemic heart disease in a former POW who had
experienced localized edema during captivity. 38 C.F.R.
§ 3.309(c) (2000).
For the sake of clarification only, it is noted that beriberi
is a disease caused by deficiency of thiamin (vitamin B) and
characterized by polyneuritis, cardiac pathology, and edema.
The epidemic form is found primarily in areas in which white
(polished) rice is the staple food, as in Japan, China, the
Philippines, India and other countries of Southeast Asia.
DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 193 (28th ed. 1994).
Edema is the presence of abnormally large amounts of fluid in
the intercellular tissue spaces of the body, Id. at 528.
Evans v. Brown, 9 Vet. App. 273, 277 (1996).
Analysis
The Board concludes that although this claim was decided by
the RO before VCAA, a remand to the RO for additional action
is not warranted as VA has already met its obligations to the
veteran under that statute. All relevant facts have been
adequately developed by the RO; given the facts of this case,
there is no reasonable possibility that any further
assistance to the veteran would aid in substantiating his
claim. The veteran was afforded a very thorough VA medical
examination recently, he was given the opportunity to
complete a Former POW Medical History form, and provided a
statement of the case. Additionally, the RO obtained service
medical records and gave notice of the type of evidence
necessary to substantiate his claim. In view of the
foregoing, the Board finds that VA has fully satisfied its
duty to the veteran under VCAA. As the RO fulfilled the duty
to assist, and because the change in law has no material
effect on adjudication of his claim, the Board finds that it
can consider the merits of this appeal without prejudice to
him. See Bernard v Brown, 4 Vet. App. 384 (1993).
Although the record reflects that the veteran was treated for
ischemic heart disease in 1989, service connection for the
disability is not warranted in this case. In essence, the
veteran alleges that service connection for ischemic heart
disease should be granted as he was a POW during World War
II. However, presumptive service connection for ischemic
heart disease requires that there have been localized edema
during captivity. 38 C.F.R. § 3.309(c), and Note. In his
May 1997 Former POW Medical History form, he indicated that
he did not experience any localized swelling. Only after his
claim of service connection was denied by August 1997 rating
decision did he have an epiphany, reverse his story 180
degrees and claim that he did have localized edema during his
WWII POW captivity.
The Board finds the veteran's earlier statement denying
localized edema during captivity far more credible than his
subsequent statement to the contrary. The latter statement
was made more recently in connection with his claim for VA
monetary benefits based on service connection for ischemic
heart disease; obviously, it is less credible and far less
reliable than the statement provided earlier. As the veteran
did not suffer localized edema while in captivity, service
connection for ischemic heart disease must be denied. Id.
Moreover service connection is not warranted pursuant to
38 C.F.R. § 3.303. Although a physician's letter confirmed
that he was treated for ischemic heart disease in May 1989
and the June 1997 VA examination report reflected lateral
wall ischemia, there is nothing in the record to link the
veteran's present disability to service. Service medical
records are silent with respect to ischemic heart disease and
the record contains no clinical evidence which would enable a
physician to come to an informed conclusion regarding a link
between any current ischemic heart disease and service.
Thus, a further medical opinion would not be helpful, and VA
is not required to provide a medical examination where the
case contains sufficient evidence for the Board to decide the
claim.
ORDER
Service connection for ischemic heart disease is denied.
J.F. Gough
Member, Board of Veterans' Appeals